Updates on Vote Status and Hearings
This website provides interested employees with updates on the OLRB hearings, and also includes some information on the organizing effort and the merits of being part of the Society for new employees.
Please check back regularly for updates on the status of the vote count and the OLRB hearings. Also check back for clarifications or responses to employer communications.
Update April 2018
OLRB Hearings and Challenges Faced
As you know, we are in the process of litigating the application for certification at the OLRB. The main issue in the case is whether the Managers and Accounting department employees must be in the bargaining unit as asserted by the employer. As a result, the Board will be examining the duties and responsibilities of the 11 people the employer says must be added to the unit the Society wishes to represent.
In December, the OLRB scheduled four days of hearing to start the litigation process: March 29, April 9, April 12, and April 18, 2018.
In preparation for the hearing dates, the Society wrote to the employer on February 7, 2018 to request that it produce certain documents. The documents we requested all relate to the eleven positions in dispute. It is a normal part of the OLRB process for parties to exchange arguably relevant documents prior to the start of a hearing.
On February 23, 2018, the employer advised the Society and the OLRB that it would not produce the vast majority of the documents that we requested. On March 9, 2018, we wrote to the employer reiterating our request for documents and providing our reasons why we viewed the refusal to produce documents as unjustified. In late March, the employer indicated that it was not backing off its position and continued to refuse to produce any additional documents. This made it necessary for the Society to seek the intervention of the OLRB, in the form of an order compelling the employer to produce arguably relevant documents.
On March 26, 2018, we had a conference call with OLRB Vice-Chair Patrick Kelly about the disputed documents. The Vice-Chair reserved his decision after hearing the parties’ arguments.
March 28, 2018 was the first day of hearing. The employer called its first witness, Senior Program Manager Amber McCauley. Ms. McCauley did not conclude her testimony. The parties were unable to use the full day of hearing because the employer had not produced documents which we were entitled to view before completing the examination of a witness.
On March 29, 2018, the OLRB issued a decision ordering the employer to produce most of the documents we had requested back in February, 2018. The Vice-Chair established a deadline of April 6.
On April 4, 2018, the employer wrote the OLRB to ask for a number of things, including:
1. a 2 month extension to its production deadline (June 8 instead of April 6); and
2. that the upcoming hearing dates be cancelled because the employer was busy and unable to produce the documents in time for any of the scheduled hearing dates.
On April 6, 2018, the OLRB issued a decision which included the following comment:
There is considerable validity to the union’s argument that NJI has been on notice since February 7, 2018 of the scope of the applicant’s production request. I agree that it would have been prudent, reasonable and responsible for NJI to have at least undertaken a search at that point even though it viewed that applicant’s request as inappropriate. I agree further that NJI’s request for a two-month extension is entirely unreasonable. (para. 18)
OLRB Orders/Decisions Available Online
Your employer should be posting the communications from the OLRB in an accessible location for all staff once they receive them. If you don't see a communication posted you can go to the Canadian Legal Information Institute (CanLII) for the most recent information. Click here for a current list.
Update December 19, 2017
Statutory Freeze and Claiming Overtime
Statutory Freeze Information
Since the representation vote, the employer has been communicating to employees that as a result of the Society's application, it is unable to make changes. In particular, the employer has told employees that recent vacancies cannot be filled because of the union's application. This is not the case.
The employer is represented by counsel and as such would know that while the certification application is pending, the Labour Relations Act allows it to conduct "business as usual". There is no reason for the employer to expand the workload of the rest of the workforce while the union's application is pending. Indeed, the failure to fill vacancies appears punitive. And blaming the union for not filling vacancies can only be seen as an act borne of anti-union sentiment, designed to make the union look bad.
The "freeze" provisions of the Labour Relations Act permit the employer to conduct "business as usual". Failure to do so could be found to be an unfair labour practice.
The "freeze" provisions also allow the employer to give salary increases, improve benefits and provide "top-up" to employees taking maternity leave while the certification application is pending, as long as the employer seeks and obtains the union's consent to do so. Needless to say, the employer has not sought our consent to do any of these things. And needless to say, were the employer to do so, the Society would consent to these improvements to your terms and conditions of employment.
Retroactive Overtime Claims
Finally, as you know, the employer has backed off its position that senior advisors who are lawyers are not "employees". This means that they, and indeed all of the employees at NJI, are entitled to overtime. Anyone who is interested in knowing more about their legal rights to overtime, including anyone who wishes to make a claim for retroactive and ongoing overtime, is invited to contact me at firstname.lastname@example.org
Update December 11, 2017
Vote Count and Hearing
Last week the employer dropped their challenge that the lawyers should be excluded from the union's proposed bargaining unit. As a result we were able to count the cast ballots today. The ballots were cast 5 against and 5 in favour of joining the union. That brings us to a total of 18 in favour and 14 opposed.
It should be noted that those ballots that have been counted to date comprise the union's proposed bargaining unit. Your employer, who clearly articulated their opposition to the unionization of the workplace during our campaign, added another 11 employees to the list just prior to the vote. For that reason we do not have a conclusive result and this process will continue for another 6 months and perhaps longer.
Instead of a clear result based upon the unions proposed bargaining unit, we have ongoing hearings with initial dates scheduled for March 28, April 9, 12 and 18. Additional dates may be added as needed. It will be necessary for employees to be called to testify.
We will be providing additional information tomorrow on the hearing process.
Update December 8, 2017
Employer Drops Challenge of Senior Advisors
This afternoon the employer withdrew their objection to lawyers being in the union's proposed bargaining unit. As a result a count of the Senior Advisor's ballot's will occur at the Toronto OLRB office on Monday. We will update the results on the website following the count.
November 29 - OLRB Regional Certification Meeting (Ottawa)
December 11 and 12 - OLRB Public Hearings Commence and Ballot Count of Lawyers (Toronto)
March 28 - OLRB Public Hearings
April 9, 12 and 18 - OLRB Public Hearings
Additional dates will be determined in April.
The OLRB hearings are public and anyone interested is welcome to attend.
Regional Certification Meeting (Nov 29, 2017)
As many of you already know, 23 ballots have already been counted. The result of that count is 13 in favour of the union, 9 opposed, and 1 spoiled ballot. At the Regional Certification Meeting the Society and the employer were unable to reach agreement on which of the remaining ballots should be counted, so all issues will be proceeding to hearing before the OLRB. The parties did discuss and agree upon which issue should be presented to the OLRB for decision first.
On December 11 and 12, the employer will call its evidence in an effort to demonstrate that the senior advisors should not be included as part of the bargaining unit. The employer’s position is that as lawyers, members of this group are excluded from the right to unionize, or should not be permitted to bargain with the other employees because they have a distinct “community of interest” (i.e they do not have workplace interests in common with other NJI employees). The Society will then present its case, and will argue that senior advisors are not employed in their capacity as “lawyers”, are entitled to bargain collectively, and share a community of interest with other NJI employees.
Assuming the hearings about the senior advisors conclude in the two days already scheduled, the Board will issue a written decision on their status within a number of weeks or months. If the hearings relating to the senior advisors are not concluded in the two days allotted, further hearing dates will be scheduled to deal with this issue.
If the Society is successful on the question of the right of senior advisors to be part of the bargaining unit (and we expect to be successful), the ballots of the senior advisors will be counted.
The other issues requiring a decision by the OLRB are as follows: (i) the status of the managers: The employer’s position is that the managers should be in the bargaining unit and that their votes should therefore be counted. As we noted earlier, we do not believe that the employer actually wants their managers to be part of the union. We believe the employer is taking this position because it believes that if the manager’s votes are counted, the union will not have enough votes to be certified. The Society’s position is that managers should not be in the bargaining unit and their votes should not be counted. (ii) whether accounting and clerical/administrative employees must be part of the bargaining unit: The employer’s position is that they must be. Again, we believe that the employer is taking this position, not because they want more people to be unionized, but because they believe that these employees voted against the union. The fact is, it is common for accounting and clerical employees to be excluded from bargaining units. The OLRB will need to hear evidence on these issues on further hearing dates that may be spread over a year.
Ultimately, the OLRB’s decision on these issues will determine whether more ballots need to be counted before it can be determined whether the Society can be certified and get down to the business of bargaining with your employer.